Victoria’s luckiest murder defendant?

Troy Grant Wells has just got bail after trying for over twelve months.  He was charged with murdering his six-week old son, although he says he just accidentally dropped little Joshua. This was his third attempt at bail, so  my initial assumption was that Wells had got the benefit of the current dubious jurisprudence on bail under the Charter. That’s because Wells struck it extremely lucky in terms of the Charter’s   absurd transitional provisions. Joshua died on 28th December 2006, just three days before the line that divides proceedings that aren’t affected by the Charter from those that are. But the police didn’t charge Wells with Joshua’s murder until 4th January 2007. That delay gives Wells the full benefits of the Charter, at least this year.

As it turns out, though, the judgment doesn’t apply the Charter and (for reasons that aren’t clear) Lasry J declared that “I do not consider delay in this case to be a circumstance worthy of separate consideration.” Rather, Wells appears to have benefited from a friendly approach to the ‘exceptional circumstances’ test that applies to murder defendants, with Lasry J relying on the weakness of the Crown case, Wells’s deteriorating mental condition while being held in protective custody and the support of his family. I would’ve though that this result could have been reached more transparently by determining whether s13(2) of the Bail Act 1977 should be re-interpreted under the interpretative mandate, as suggested by Roos.

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